Monette & Monette (No 2) - [2024] FedCFamC1F 481

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Monette & Monette (No 2) [2024] FedCFamC1F 481

File number(s): ADC 2811 of 2021

Judgment of: BERMAN J

Date of judgment: 23 July 2024

Catchwords:
FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Consideration of family violence – Allegations of sexual abuse – Where the wife seeks a finding that the children were sexually abused by the husband – Where the Court finds that sexual abuse could have only occurred at the paternal grandparents’ home following supervised time – Consideration of the reliability of the children’s disclosures – Where the children have been subjected to repeated investigations, assessments, interviews and discussions – Where the wife used every opportunity to notify and raise allegations – Where the Court finds the husband did not sexually abuse the children – Where the wife’s beliefs are genuine nonetheless without foundation – Consideration of unacceptable risk of harm – Where the evidence does not support a finding of the husband being an unacceptable risk of harm – Consideration of meaningful relationship – Where the children have not spent time with the husband for two years – Where the children fulsomely engaged with the husband during supervised visits – Where the wife asserts that she will support a relationship if no finding of sexual abuse – Where the Court finds that the children would benefit from a meaningful relationship with the husband – Where the ICL promotes significant time with the children and the husband – Orders made for a graduated increase in time with the husband.

FAMILY LAW – PROPERTY – Modest asset pool – Where the parties’ proposals are 10 per cent apart – Consideration of contributions – Where the parties’ took on traditional roles within the marriage – Contributions considered equal – Consideration of future needs factors – Where the husband has a greater income earning capacity – Where the wife is the primary carer – Consideration of a child’s significant medical needs – Adjustment made in the wife’s favour – Consideration of addbacks – Where the legal fees incurred are disproportionate to the issues – Where the Court declines to addback legal fees – Orders made for the interim property settlement funds to be added back – Orders.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim and lump sum – where the husband concedes that the wife is entitled to spousal maintenance – Consideration of quantum of spousal maintenance – Assessment of reasonable expenses – Orders made for a lump sum payment.

Legislation:
Evidence Act 1995 (Cth) 140

Family Law Act 1975 (Cth) Division 12A, ss 4AB, 60B, 60CA, 60CC, 61DA, 69ZT, 69ZV, 69ZW, 72, 74, 75, 79.

Criminal Procedure Act 1921 (SA) s 103

Cases cited:
Amador & Amador [2009] FamCAFC 196

Baglio & Baglio [2013] FamCA 105

Briginshaw v Briginshaw [1938] HCA 34

Drysdale & Drysdale [2011] FamCAFC 85

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Harridge & Harridge [2010] FamCA 445

Isles & Nelissen (2022) FLC 94-092

M v M [1988] HCA 68

Maluka & Maluka [2012] FamCA 373

N & S & The Separate Representative (1996) FLC 92-655

NHC & RCH (2004) FLC 93-204

Sawant & Karanth [2014] FamCAFC 235

S v R (1999) FLC 92-834

S v S [1993] NZ FLR 657

Stein & Stein (2000) FLC 93-004

Vasser v Taylor-Black (2007) FLC 93-329

VJ v CJ (1997) FLC 92-772

Division: Division 1 First Instance

Number of paragraphs: 721

Date of hearing: 2-5, 8-12, 15-19 April and 6-7 May 2024

Place: Adelaide

Counsel for the Applicant: Mr Bowler

Solicitor for the Applicant: Eastern Legal

Counsel for the Respondent: Ms Ross together with Mr Kane

Solicitor for the Respondent: Alex Mandry Legal Group

Counsel for the Independent Children's Lawyer: Ms Lindsay

Solicitor for the Independent Children's Lawyer: Ryder Family Law
ORDERS

ADC 2811 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MONETTE

Applicant

AND:
MR MONETTE

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

23 JULY 2024

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parties have shared parental responsibility for X born 2016 (“X”), Y born 2018 (“Y”) and Z born 2019 (“Z”) (collectively “the children”).
3.Ms Monette ("the applicant”) shall have sole parental responsibility for major issues relating to the medical health of the children.
4.The parties are restrained and an injunction is granted restraining each of them from taking the children for any counselling, therapy or clinical psychological assessment other than if the parties jointly give their consent.
5.The children live with the applicant.
6.The children spend time with Mr Monette (“the respondent”) as follows:
6.1Commencing 27 and 28 July 2024 for a period of six (6) weeks:
6.1.1From 10.00 am to 2.00 pm each alternate Saturday and Sunday PROVIDED THAT the respondent’s time with the children shall be the subject of supervision by one or both of the paternal grandparents.

6.2Commencing on 7 and 8 September 2024 for a period of twelve (12) weeks:
6.2.1from 10.00 am to 4.00 pm on each alternate Saturday and Sunday PROVIDED THAT the respondent’s time with the children shall be the subject of supervision by one or both of the paternal grandparents.

6.3Commencing on 30 November 2024 each alternate weekend from the conclusion of school on Friday (or 3.30 pm if not a school day) to 5.00 pm Sunday.
6.4Commencing on 7 February 2025 each alternate weekend from the conclusion of school Friday (or 3.30 pm if not a school day) to the commencement of school on the following Monday or 5.00 pm if not a school day.
6.5Commencing on 4 April 2025:
6.5.1Each alternate weekend from the conclusion of school Thursday (or 3.30 pm if not a school day) to the commencement of school on Monday or 5.00 pm if not a school day; and
6.5.2Each Tuesday from the conclusion of school (or 3.30 pm if not a school day) to 6.00 pm.

7.The children spend time with the parties during the school holidays commencing at the end of second term 2025 as follows:
7.1In the short school holidays, with the respondent from the conclusion of school on the last day of term until 5.00 pm on the middle Saturday and with the applicant for the remainder of the holidays; and
7.2In the December/January holiday period, on a week about basis with the respondent to have the first week and handover to take place each Friday at 5.00 pm but NOTING THAT the respondent shall collect the children from school on the last day of term.

8.Notwithstanding orders 6.3 – 6.5 inclusive the children shall spend time with each of the parties at the following specified times unless otherwise agreed between them in writing:
8.1In 2025 and each alternate year thereafter from 9.00 am on Christmas Eve until 3.00 pm on Christmas Day with the respondent and from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day with the applicant; and
8.2In 2026 and each alternate year thereafter from 9.00 am on Christmas Eve until 3.00 pm on Christmas Day with the applicant and from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day with the respondent.
8.3From 9.00 am on Good Friday until 5.00 pm on Easter Monday (for Catholic Easter and Orthodox Easter) in even years with the applicant and in odd years with the respondent.
8.4Commencing 2025, with the applicant from 5.00 pm on the preceding Saturday until 5.00 pm on Mother’s Day and with the respondent from 5.00 pm on the preceding Saturday until 5.00 pm on Father’s Day.
8.5From 2025, unless otherwise agreed in writing, the children shall spend time with the parent with whom they are not living on each child’s birthday for a minimum of two (2) hours if the birthday falls on a school day and a minimum of four (4) hours if the birthday falls on a non-school day at such times to be agreed and failing agreement between the parties with such time to commence at the conclusion of school on a school day and at 10.00 am on a non-school day NOTING THAT if handover is to occur on a child’s birthday no additional time will be required.

9.Each of the parties will keep the other advised by the use of a Parenting App as to the children’s physical or mental health and welfare and of any change of school, education issue and any issue regarding the children’s religion.
10.Each party shall keep the other informed of any serious illness, accident or incident involving the child or children and each party is at liberty to visit the children during any period when the children may be hospitalised subject to the parties using their best endeavours to attend upon the child or children in the absence of the other party.
11.The respondent has leave to provide a copy of the final orders and an anonymised version of the judgment to any school that the children attend if he considers it necessary NOTING THAT the children currently attend B School.
12.Each party is entitled to be involved in the children’s school and be permitted to obtain copies of all documents relating to the children inclusive of reports, activities and photographs at their own cost direct from the children’s childcare, kindergarten and school.
13.Each party is entitled to attend, spend time and communicate with the children at school and other public venues for events that parents are normally invited to including but not limited to sports days, sporting events, school concerts, school plays, fundraisers, excursions, school camps and other like events PROVIDING THAT the parties will use their best endeavours to ensure that they do not attend at the same time.
14.Each party do advise the other of any change to their residential address via the Parenting App as agreed.
15.The order for the Independent Children’s Lawyer be discharged.
16.In full and final settlement of all claims that either party may have against the other for settlement of property in alteration of interest in property and NOTING THAT the net non-superannuation assets of the parties are to be divided as to 67.5 per cent in favour of the applicant and 32.5 per cent in favour of the respondent.

THE COURT ORDERS BY CONSENT THAT:
17.The former matrimonial home situate at C Street, Suburb D (“the Suburb D property”) be sold and to give effect to the sale of the Suburb D property:
(a)Within seven (7) days of this order, the parties do all such things and sign all such documents to jointly engage Ms E of F Real Estate to sell the Suburb D property on such basis and upon such terms as recommended by Ms E and agreed to by the parties in writing.
(b)The parties agree to the Suburb D property being sold by auction at a reserve price of not less than $1,800,000.00.
(c)Upon sale of the Suburb D property, the proceeds of sale shall be applied as follows:
(i)Firstly, in discharge of all monies due and owing in respect of the home loan in relation to the Suburb D property, to National Australia Bank, mortgage number #32;
(ii)in payment of all sales costs and commissions; and
(iii)in payment of each party’s conveyancing fees;

18.Pending the settlement of the sale of the Suburb D property, paragraphs 4, 5 and 6 of orders made 19 April 2023 (amended on 21 April 2023) do continue.

THE COURT FURTHER ORDERS THAT:
19.The net proceeds of sale of the Suburb D property are to be disbursed as follows:
19.1To the Eastern Legal Pty Ltd Law Practice Trust Account for and on behalf of the applicant a sum calculated as to 67.5 per cent of the net proceeds of sale, less the sum of $44,900 comprising $64,900 for property retained less $20,000 by way of lump sum spousal maintenance;
19.2To Alex Mandry Legal Group Trust Account for and on behalf of the respondent, the balance of the net proceeds of sale.

20.Pursuant to s 74(1) of the Family Law Act 1975 (Cth) (“the Act”) the respondent do pay to the applicant lump sum spousal maintenance in the sum of $20,000 (noting that the said sum will be disbursed to the applicant at settlement pursuant to order 19.1).
21.The applicant shall be entitled to any and all net income generated from the tenancy of the Suburb D property but to be taken into account and directly deducted from the lump sum spousal maintenance payable to the applicant.
22.The parties do all things and sign all such documents as may be necessary to close the joint NAB Bank Account (Account Number #04) with the applicant to retain the balance of the account as part of her property settlement.
23.The applicant do retain free from claim by the respondent the following:
23.1Her bank accounts (including any settlement sum);
23.2The furniture and effects in her possession;
23.3Her furniture and personal possessions;
23.4Motor vehicle 1;
23.5Her superannuation entitlements (inclusive of the superannuation split referred to herein); and
23.6Any other personal property and/or financial resource of the applicant not otherwise specified herein.

24.The respondent do retain free from any claim by the applicant the following:
24.1His bank accounts (including any settlement sum);
24.2Furniture and effects in his possession;
24.3His jewellery and personal possessions;
24.4His superannuation entitlement; and
24.5Any other personal property and/or financial resources the respondent not otherwise specified herein.

25.The respondent do all things necessary to cause Motor vehicle 1 to be transferred to the applicant forthwith and shall indemnify the wife and discharge the outstanding liability to the husband’s father.
26.The following shall apply to the respondent’s interest in Super fund 1(“the fund”):
26.1That pursuant to s 90XT(4) of the Family Law Act 1975 (as amended) the Court allocates such base amount to split 50 per cent of the total of the parties respective superannuation entitlements to the applicant out of the respondent’s interest in the fund;
26.2That in accordance with s 90XT(1)(a) of the Act:
26.2.1The applicant (or the applicant’s administrators, executives, beneficiaries, heirs or assigns) to the extent permitted by law is entitled to be paid using the base amount allocated in the immediately preceding order in the sum of FIFTY-THREE THOUSAND, SIX HUNDRED AND TWENTY FIVE DOLLARS ($53,625), the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001; and
26.2.2The entitlement of the respondent in the fund (or the entitlement of such other person who becomes entitled to receive a payment out of the respondent’s superannuation interest) is correspondently reduced by force of this order.

26.3That the trustee of the fund (“the trustee”) shall do all acts and things and sign all such documents as may be necessary to:
26.3.1Calculate, in accordance with the requirements of the Act the entitlement awarded to the applicant in the immediately preceding clause of this order; and
26.3.2Pay the entitlement whenever the trustee makes a splittable payment from the respondent’s interest in the fund.

26.4That this order has effect from the operative time and the operative time is the beginning of the fourth business day after the day in which the order is served on the trustee of the fund by either party, so that the splittable payment can be administered affectively.
26.5That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the respondent shall do all things and sign all such documents as may be necessary, including but not limited to exercising the applicant’s request in accordance with the SIS Regulations, for the role over or transfer of the non-member spouse interest to a complying superannuation fund of the applicant’s choosing in accordance with the SIS Regulations.
26.6That having been accorded procedural fairness in relation to the making of the order for a superannuation split, these orders bind the trustee of the fund.

27.Each of the parties do indemnify the other in respect of their separate actions, claims, proceedings and demands howsoever arising in relation to any debt or liability incurred in their separate names.
28.The parties do all acts, deeds, and things and sign and execute all documents necessary to give full force and effect to this order provided that if either the applicant or the respondent shall refuse or neglect to execute a document necessary to give full force and effect to this order within fourteen (14) days after the same shall have been tendered to him or her for that purpose then and in such event a Judicial Registrar or Deputy Registrar of Division 1 of this Court shall upon proof by affidavit of such refusal or neglect be appointed to execute and in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things as shall be necessary to give full force and affect thereto and shall execute and do the same accordingly.
29.Each party to pay one half of the agreed costs of the Independent Children’s Lawyer.
30.Each party pay their own costs and disbursements.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION

Ms Monette (“the applicant”) and Mr Monette (“the respondent”) are unable to reach agreement in respect of parenting and property matters.
There are three children of the relationship namely, X born 2016 (“X”), Y born 2018 (“Y”) and Z born 2019 (“Z”) (collectively “the children”).
The children currently remain in the sole care of the applicant.
Orders were made by consent on 17 June 2022 that the children would spend time with the respondent as follows:
a)On Wednesday 13 July 2022 between 12 noon and 6pm subject to the following conditions:
i)the first 2 hours (including the handover) of the [respondent]’s time with the children is to be in the presence of Ms [G];
ii)the [respondent] and Ms [G] are to agree upon the location for the handover and communicate the same to the mother no later than 5pm the day prior;
iii)the [applicant] shall be solely responsible for the costs of Ms [G] associated with this visit; and
iv)the handovers at the conclusion of the [respondent]’s time with the children shall occur at the [...] Service Station on [H Street].
b)On 9 September 2022 from 10am until 4pm subject to any conditions on the [respondent]’s time as may be Ordered subsequently to the date of these Orders PROVIDED THAT if the [respondent]’s time is required to take place in the presence of Ms [G] (or any other independent person) then the time is subject to the following conditions:
i)the [respondent] and Ms [G] (or any other independent person who may have been ordered to be present during the [respondent]’s time with the children) are to agree upon the location for the handover;
ii)the [respondent] must communicate the details of the visit agreed in paragraph 1(b)(i) to the [applicant] no later than 5pm the day prior;
iii)the [applicant] shall be solely responsible for the costs of Ms [G] (or any other independent person required to be present during the [respondent]’s time) associated with this visit; and
iv)the handovers at the conclusion of the [respondent]’s time with the children shall occur at the [...] Service Station on [H Street].

There was some disagreement between the parties as to the extent of the supervision of the respondent’s time by Ms G (“Ms [G]”). Whilst time spending did occur, the last time that the respondent saw the children was on 3 September 2022.
The applicant alleges that the respondent has sexually abused the children and therefore he presents as an unacceptable risk irrespective of whether the respondent’s time is supervised or unsupervised.
The effect of the orders sought by the applicant is that the children would not have any personal relationship with the respondent other than via the opportunity for him to send the children cards and gifts to celebrate their birthdays and Christmas. The applicant does not object to the respondent obtaining school related information relating to their education, curricular and extra-curricular activities.
The respondent denies the applicant’s allegations of sexual abuse and instead seeks a finding that the children would be exposed to an unacceptable risk of emotional and psychological harm if they remain in the primary care of the applicant. His concern is that the applicant’s behaviour is likely to instil a false narrative in the children that they have been the victims of sexual abuse perpetrated by the respondent and further that she is unable to support a relationship between the children and him.
Although not the main focus, the applicant contends that during the period of cohabitation the respondent perpetrated family violence resulting in significant adverse consequences for her.
The applicant does not concede that even if the allegations are incapable of substantiation, that the respondent has the capacity to care for the children taking into account their special needs but in particular, the child Z.
The applicant acknowledges that it is not alleged that prior to separation the respondent sexually abused or placed the children at risk of sexual abuse. The allegations of sexual abuse are confined to the period between the date of separation in April 2021 and 3 September 2022 being the last occasion that the children spent time with the respondent.
As will be discussed, the date of separation in April 2021, is highlighted by the applicant and the three children leaving the former matrimonial home at C Street, Suburb D (“the Suburb D property”) and taking up residence in her parents’ property.
The applicant was arrested by police on the day of separation, placed in custody and charged with a criminal offence, supplemented by an Interim Intervention Order being put in place.
By order of 5 July 2021, the parties consented to the children living with the applicant and spending time with the respondent under the strict supervision of Ms G. It is not a serious contention of the applicant that Ms G’s supervision was in some way deficient or negligent such that it would have allowed any opportunity for the respondent to sexually assault the children.
The opportunity for the respondent to have sexually abused the children is then confined to a more narrow period being after 30 November 2021 when the respondent’s time with the children increased to four hours duration and was supervised by family members.
On 11 February 2022, the parties reached agreement that supervision was no longer a requirement of the time that the children spend with the respondent. However, the respondent’s time was unilaterally stopped by the applicant on 29 April 2022 following the applicant’s allegation that Y had talked about the respondent displaying weapons to the children and further that they should show their bottoms to other people.
It appears that the applicant thereafter insisted that the respondent’s time with the children be the subject of supervision by Ms G and on 17 June 2022 orders were made by consent that the children spend six hours each week with the respondent with the first two hours being the subject of supervision by Ms G.
In summary, the opportunity for the respondent to have sexually abused the children could only have occurred during the period that he spent time with the children which was supervised by members of his family and/or during the occasions from 9 June 2022 to 9 September 2022 after the first two hours when the children spent time with the respondent that was not the subject of supervision by Ms G.
The parties are also not able to reach agreement as to settlement of property. Both parties join in seeking a determination from the Court that pursuant to s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) it is just and equitable for the Court to consider their legal and equitable interests and to embark upon orders for property settlement and division.
The property of the parties is relatively modest and whilst not agreed, the difference between the parties in terms of percentage adjustment is 10 per cent in favour of the applicant and for adjustment of superannuation, the parties are 5 per cent apart in favour of the applicant in respect of a modest total superannuation entitlement.
Whilst not ignoring the primary focus of the litigation is upon the parenting issues, it is likely if not inevitable, that the costs incurred by the parties in not resolving property settlement is likely to exceed the narrow compass of the dispute.
The Court is assisted by the involvement of an Independent Children’s Lawyer (“ICL”) who promotes three alterative outcomes. By reference to the draft order, if the Court finds that the children have not been the subject of sexual abuse and the applicant is now able to accept that the respondent does not present as an unacceptable risk to the children then the ICL proposes that the children remain in the applicant’s primary care with incrementally increasing time spent with the respondent.
If the applicant is unable to facilitate the children having a relationship with the respondent then the ICL advocates for a change in the primary care to the respondent with the children spending supervised time with the applicant at a Children’s Contact Service and thereafter the time is to gradually increase to a period of seven consecutive nights during the short school holidays and a two week block of time during the long December/January school holidays.
If the Court finds that the applicant has acted maliciously or recklessly and remains unable to accept that the respondent does not present as an unacceptable risk to the children, then the respondent should have sole parental responsibility and the children should live in his primary care with the applicant to spend only limited time with the children on alternate Saturday’s from 10.00 am to 2.00 pm.
An overview of the position adopted by the ICL is an acceptance that the allegations of sexual abuse are not able to be substantiated but moreover there should be a finding that the respondent does not present as an unacceptable risk.
BACKGROUND
The applicant is 38 years of age and the respondent is 38 years of age. Both parties are of Country J heritage.
The parties commenced their relationship in either 2006 or 2007.
The applicant has tertiary qualifications. As at the date of the hearing, the applicant was enrolled in an online course seeking a further tertiary qualification.
The respondent works full time in a business that involves the management of rural property in Region K and also in the sales and marketing of farmed produce.
Whilst not the main focus of the proceedings, the husband’s employment is secure, and he remains in receipt of a reasonable income whereas the applicant has supplemented her financial resources from part-time allied health work.
From the date of separation, the children remained in the primary care of the applicant and spent some supervised time with the respondent but since September 2022, they have been in the applicant’s sole care.
The parties married in 2014. There is some contention between the parties as to the household roles and duties undertaken by each of them. The applicant describes the marital relationship as “traditional” with the respondent as the “leader”. The respondent concedes that the initial arrangement, and then the subsequent practice of the parties, was that he was required to work hard in the business thereby generating the necessary income with the applicant being the stay-at-home parent.
X was born in 2016. There is some disagreement between the parties as to the nature and difficulty of the applicant’s pregnancy however, it appears that a paediatric review of X revealed that she may have a medical condition and would need to commence medication.
It appears from the evidence that if the diagnosis was accurate, then the condition has been well maintained with medication. In any event, it does not appear that X displayed any adverse symptoms.
The respondent concedes that once X was born and was somewhat settled, he returned to full-time work and would often return home late by which time the applicant had looked after X without his significant involvement.
Y was born in 2018. Her birth was unremarkable, and the respondent properly concedes that the applicant undertook Y’s primary care.
Whilst there is not complete consensus between the parties, it appears that at the very least, they were content with their relationship and their circumstances.
Z was born in 2019. At birth, Z presented with a medical condition requiring corrective surgery.
In addition, Z also presents with another medical condition requiring invasive corrective surgery.
There is also the potential for Z to have hearing loss, the possibility of learning and/or developmental delay and whilst not yet the subject of diagnosis, there remains the potential for hearing loss to accelerate and organ function to deteriorate.
The applicant sets out the history of the extensive medical intervention for Z which has involved multiple corrective surgeries, the use from time to time of a medical device and ongoing and detailed engagement with medical specialists.
Whilst the respondent cares deeply for Z, the applicant’s significant engagement in Z’s ongoing care should be considered at the highest level with the applicant being unrelenting in her attention to Z’s needs.
The parties purchased the property at C Street, Suburb D (“the Suburb D property”) in 2014 for over $950,000 together with stamp duty, conveyancing costs and charges.
The property was leased to tenants until about 2017 during which time the parties lived in rented accommodation.
Eventually the family took up occupation in the Suburb D property until the date of separation whereupon the applicant and the three children left the property and resided in the home of the maternal parents.
In April 2021, the respondent was arrested and charged with a criminal offence against the applicant and an Interim Intervention Order was made.
The following day, the applicant arranged for members of her family and friends to collect furniture and effects from the Suburb D property together with clothing for the applicant and the children.
There was an initial dispute as to whether the Suburb D property should be sold. Whilst there remains some uncertainty as to whether the respondent lived in the Suburb D property following separation, the status of the property was brought into sharp focus by the applicant filing an Application in a Proceeding on 13 October 2022 seeking that the Suburb D property be sold.
However, the parties are now agreed that the Suburb D property should be placed on the market for sale.
Judgment was delivered on 19 April 2023 which ordered the parties to do all things necessary to facilitate the rental of the Suburb D property via a property manager, with the rental income to be disbursed as follows:
(a) in payment of the property manager expenses;
(b)in payment of the amount of ONE THOUSAND AND FIFTY-SIX DOLLARS ($1,056.00) per week to the [applicant] by way of spouse maintenance; and
(c)any balance remaining to be deposited into a joint interest-bearing account in the name of both parties pending further order.
In addition, the respondent was ordered to pay the home loan instalments and any associated costs not paid by the tenant with a further order that restrained him from removing any items of furniture or personal effects from the Suburb D property. An issue remains in respect of the intention of order 5 made 19 April 2023 in that the orders do not provide for a specific separate order for spousal maintenance in favour of the applicant but rather links the payment of spousal maintenance to the rental income.
The applicant seeks that there be a calculation of the amount of spousal maintenance as and from the date of the order less any monies received by way of net rental income. The respondent’s contention is that the applicant is not entitled to anything more than she received by way of net rental following the payment out of the property manager’s expenses.
Following the respondent’s arrest on the date of separation, the parties entered into a Parenting Plan on 7 May 2021 which set out arrangements for the children to spend supervised time with the respondent.
Following the filing of the Initiating Application on 11 June 2021, the parties entered into a Consent Order that provided on an interim basis, the children would live with the applicant and spend time with the respondent supervised by Ms G.
Ms G provided a report of the supervised visits on 24 September 2021. The parties considered that the report of Ms G was favourable in respect of the children’s relationship with the respondent and accordingly, Consent Orders were made on 30 November 2021 which increased the children’s time with the respondent initially to be supervised by paternal family members.
Whilst there were some alleged difficulties in the children’s time with the respondent in particular, with the applicant alleging that Z returned to her care on 30 January 2022 with a red and inflamed anus, and with some alleged increasing difficulty with Y separating from the applicant, on 11 February 2022 agreement was reached that the respondent could spend time with the children without supervision.
Allegations and counter allegations were made and the applicant became concerned that the children referred to the respondent and his possession of weapons. Whilst ultimately nothing of significant turns on the applicant’s concern in this regard, of greater impact on the applicant was a further allegation that Y had said that the respondent encouraged her to show her bottom to people.
On 29 April 2022, the mother ceased time between the children and the respondent unless it was supervised again by Ms G.
As discussed, the period between 11 February 2022 and 29 April 2022 is likely to represent the only period where the applicant’s allegations of alleged sexual abuse and assault of the children by the respondent could have occurred.
On 1 May 2022, the applicant alleges that Y told her that the respondent had shown her photos of naked adult bottoms in the presence of the paternal aunt.
The alleged disclosures by the children were sufficient to promote the interest of the police to further investigate the respondent’s conduct.
On 17 June 2022, orders were made reinstating the children’s time with the respondent subject to the condition that the first two hours of the six-hour period was supervised by Ms G. The respondent first recommenced spending time with the children, in accordance with the orders, on 18 June 2022.
In July 2022, the police withdrew the criminal charges and the Intervention Order against the respondent.
In July and August 2022, the applicant alleges that X made further disclosures about seeing bottoms on the respondent’s phone and further, that X had engaged in sexualised behaviour evidenced by her pulling down her underpants and leggings in front of the applicant, her uncle and aunt.
The last visit the respondent had with the children took place on 3 September 2022 and thereafter, the respondent has spent no time with the children.
In September 2022, the respondent underwent a further record of interview with SAPOL and was arrested and charged with various offences together with the seizure of his mobile phone and weapons. A further Interim Intervention Order was also put in place listing the applicant as the protected person.
In May 2023, the criminal charges were withdrawn.
Thereafter, X and Y were interviewed by Child Protection Services (“CPS”).
DOCUMENTS RELIED UPON
The applicant relies upon the following documents:
(1)Amended Initiating Application filed 29 December 2023.
(2)Trial affidavit of applicant filed 29 December 2023.
(3)Reply affidavit of the applicant filed 27 March 2023
(4)Financial Statement filed 29 December 2023.
(5)Affidavit of Ms L filed 13 December 2023.
(6)Affidavit of Mr M filed 18 December 2023.
(7)Affidavit of Mr N filed 13 December 2023.
(8)Affidavit of Ms O filed 27 March 2024.
(9)Case Outline document.
The respondent relies upon the following documents:
(1)Further Amended Response filed 8 March 2024.
(2)Trial Affidavit of the respondent filed 13 March 2024.
(3)Affidavit of Ms P filed 13 March 2024.
(4)Affidavit of Mr Q filed 13 March 2024.
(5)Affidavit of Mr R filed 13 March 2024.
(6)Affidavit of Ms S filed 8 March 2024.
(7)Affidavit of Mr Monette senior filed 8 March 2024.
(8)Affidavit of Ms P filed 13 March 2024.
(9)Financial Statement filed 27 March 2024.
(10)Case Outline document.
The ICL relies upon the following documents:
(1)Affidavit of Ms U filed 15 December 2023.
(2)Affidavit of Ms V filed 28 March 2024.
(3)Affidavit of Ms G filed 28 March 2024.
(4)Affidavit of Ms W filed 28 March 2024.
(5)Proposed Minute of Order dated 16 April 2024.
(6)Case Outline document.
The applicant and the respondent also provided a tender bundle of documents prior to the commencement of the trial.
COSTS INCURRED BY THE PARTIES
Exhibit “1” comprised the Cost Notices provided to each of the parties as at the commencement of trial on 2 April 2024.
The applicant’s costs incurred are as follows:

Legal fees billed and paid to date (including counsel fees and disbursements) $110,162

Legal fees and disbursements billed but not yet paid Solicitor:  $7,704
Counsel:  $30,010

Funds in solicitor’s Trust Account $2,240

Total of outstanding costs unbilled to date $227,826

Future anticipated costs to the conclusion of the final hearing Solicitor:  E$52,000
Counsel:  E$125,000-$157,300

The source from which the applicant has been able to pay her fees are summarised as follows:[1]
We confirm your instructions that you have paid your costs to date from the interim property settlements of $15,000 pursuant to order of 3 August 2021, $62,000 received on 7 July 2022 (both of which were applied entirely to the payment of outstanding legal fees), your pension, rental income from the [Suburb D property] being rented (spousal maintenance) and a loan from your parents.
[1] Exhibit “1”.
What is immediately apparent is that the applicant has outstanding legal fees, costs and disbursements of approximately $467,240 in addition to the legal fees billed and paid to date of $110,162.
The total legal fees for the applicant are nearly $600,000.
The costs incurred by the respondent are as follows:

Costs paid to date $245,708

Unbilled work in progress $30,535

Counsel fees paid to date $31,137

Anticipated cost for further trial preparation E$10,000

Solicitor’s fees for trial E$48,000

Counsel fees for trial E$160,000

The total fees, costs and disbursements for the respondent that are outstanding is in the sum of $248,535.
Taking into account the costs paid to date, the total costs incurred by the respondent is in the sum of $525,380.
In addition, the ICL also provided a Costs Notice dated 1 May 2024 which indicated that their total fees up to and including the trial were approximately $42,846. The ICL, in accordance with the Act, made an application for costs and therefore, the total cost of the parties is likely to exceed $1,150,000.

It is a trite, and possibly naïve, observation that the money that has and will be spent on the litigation would have had the potential to provide the parties and the children with a high level of financial security going forward.
ORDERS SOUGHT
The orders sought by the applicant are summarised as follows:[2]
[2] Amended Initiating Application filed 29 December 2023.
(1)That the applicant have sole parental responsibility for the children.
(2)That the children live with the applicant.
(3)That the respondent be at liberty to send the children cards and gifts on their birthdays and for Christmas.
(4)That the applicant shall keep the respondent updated as to the physical and mental health of the children via a “Parenting App”.
(5)That the respondent is at liberty to obtain copies of all documents relating to the education of the children inclusive of school reports, school activities and school photographs provided they are at his own cost.
(6)That by way of settlement of property the net superannuation assets of the parties be divided as to 75 per cent in favour of the applicant and 25 per cent in favour of the respondent.
(7)That the Suburb D property be sold with the net proceeds of sale to be disbursed as follows:
(a)Payment of any settlement sum to the applicant via her solicitors’ trust account; and
(b)The balance to be paid to the respondent provided that any arrears of spousal maintenance owing to the applicant pursuant to orders made 19 April 2023 after the subtraction of monies paid to the applicant for the rental of the Suburb D property.
(8)That the respondent pay to the applicant by way of spousal maintenance the lump sum of $102,124 calculated on the basis of $2,321 per week for a period of 44 weeks being the date of the first day of trial until the date that Z starts school in 2025.
(9)That the respondent be solely responsible for and shall pay all monies due and owing in respect of the home loan together with rates, taxes, insurance premiums and other outgoings in relation to the Suburb D property.
(10)That the parties shall each retain their personal property and financial resources not otherwise referred to in these orders.
(11)That the respondent’s superannuation interest in Super fund 1 (“the fund”) shall be the subject of a superannuation split such that the Court shall allocate a base amount representing 55 per cent of the superannuation interests of the parties to the applicant.
The applicant seeks a further order that the respondent pay her costs of and incidental to the proceedings on an indemnity basis.
The orders sought by the respondent are summarised as follows:[3]
[3] Further Amended Response to Initiating Application filed 8 March 2024.
(1)That the respondent have sole parental responsibility for the children.
(2)That the children live with the respondent.
(3)That the applicant deliver up the children to the respondent in the presence of a family consultant in the precincts of the Court.
(4)That the respondent be at liberty to enrol the children in a school of his choice.
(5)That for a period of six (6) calendar months the children spend no time with the applicant.
(6)That should the applicant not deliver up the children to the respondent as ordered then pursuant to s 67Q of the Act a recovery order should issue.
(7)That conditional upon the applicant at her sole cost attending upon a psychologist to assist in her acceptance of the orders sought, following the conclusion of the moratorium on the children spending time with the applicant for a period of six (6) months, then they shall spend supervised time with her at a Children’s Contact Service for a period of two hours each week for a period of four weeks.
(8)Thereafter the children shall spend each alternate weekend with the applicant from 9.00 am to 5.00 pm each Saturday for a period of four weeks and then each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday.
(9)That the children spend time with each of the parties during the Christmas period, the Catholic and Orthodox Easter’s, Mother’s Day, Father’s Day and for time on the children’s birthdays.
(10)That each party shall be entitled to attend and spend time with and communicate with the children at school and other public venues for events that parents are normally invited and if so permitted as a spectator, volunteer or participant.
(11)That by way of settlement of property, the Suburb D property be sold and the net proceeds of the sale be divided as to 65 per cent to the applicant and 35 per cent to the respondent.
(12)That there be a superannuation equalisation the parties’ superannuation interests.
(13)That the order for spousal maintenance made on 19 April 2023 be discharged.
Similar to the applicant, the respondent seeks that the applicant pay his costs of and incidental to the proceedings.
As is apparent, whilst the parties maintain a significant difference in their separate parenting proposals, given the size of the pool and the value to be attributed to the superannuation interests of the parties, the difference between the parties is modest and certainly not of such magnitude that would justify each of them incurring even a modest proportion of the total legal fees likely to be expended.
The parties are in agreement that the Suburb D property is to be placed on the market for sale at the earliest opportunity.
The orders proposed by the ICL are considered under the following categories:
(1)Should the Court find that the applicant has been misguided in her belief that the children have been sexually abused and she now accepts that the respondent does not present an unacceptable risk of harm to the children and is able to facilitate the children having a relationship with the respondent, then:
(a)The parties have equal shared parental responsibility for the children;
(b)The children live with the applicant;
(c)The children spend incrementally increasing time with the respondent such that for the balance of 2024 and by the commencement of the first end of term 1 school holidays, the respondent’s time with the children will be:
(i)On alternate weekends from the conclusion of school Thursday (or 3.30 pm if not a school day) to the start of school Tuesday;
(ii)On the intervening Thursday from the conclusion of school (or 3.30 pm if not a school day) to 6.30 pm; and
(iii)For one half of the short-term school holidays and on a week about basis in the December/January school holidays.
(2)Should the Court find that the applicant has been misguided in her belief that the children have been sexually abused by the respondent but she remains unable to facilitate the children having a relationship with the respondent then:
(a)The respondent have sole parental responsibility for the children;
(b)The children be delivered up to the respondent either by delivery of the children to the Court premises or failing which, a recovery order is to issue;
(c)The children live with the respondent; and
(d)The children’s time with the applicant shall initially take place at a Children’s Contact Service for six sessions and thereafter shall incrementally increase over a period of thirty six weeks with the children spending each alternate weekend with the applicant from the conclusion of school Thursday to the commencement of school on Tuesday and one half of the short end of term school holidays and for a period of two weeks during the December/January school holidays.
(e)Each of the parties are the subject of restraint and injunction in terms of involving the children in the proceedings and from taking any of the children to any medical practitioner, allied health practitioner, psychologist or counsellor without prior written consent of the other parent.
(f)The applicant be restrained and an injunction granted restraining her from the following:
(i)Attending at the respondent’s residence without his consent;
(ii)Attending any daycare facility, kindergarten or school attended by any of the children not provided for in these orders;
(iii)Taking any of the children to any medical practitioner, allied health practitioner, psychologist or counsellor without prior written consent of the other parent; and
(iv)Communicating with the children’s medical and allied health professionals other than with the prior written consent of the respondent which consent shall not be unreasonably withheld.
(3)Should the Court find that the applicant has acted maliciously or recklessly and is unable to facilitate the children having a relationship with the respondent and will continue to promote allegations that the respondent presents as an unacceptable risk of harm to the children, then:
(a)The respondent shall have sole parental responsibility for the children;
(b)The applicant deliver up the children to the respondent in the event of non-compliance then a recovery order do issue;
(c)The children live with the respondent;
(d)The children spend time with the applicant is as follows:
(i)At a Contact Service at such times and dates as directed by the service for six sessions; and
(ii)Thereafter on alternate Saturdays from 10.00 am to 2.00 pm with such time to be supervised by a family member agreed between the parties in writing and failing agreement then the respondent shall nominate no fewer than four persons as potential supervisors and the applicant shall chose the supervisor from that list.
(e)The applicant be at liberty to send gifts, cards and letters to the children at the respondent’s postal address for each of the children’s birthday, Christmas and Easter with the respondent to be at liberty to check the contents and to withhold any written material that he deems inappropriate.
(f)The respondent advise the applicant as soon as practicable of any significant medical issues concerning the children or any of them together with details of any treating practitioner or allied health professional.
(g)The respondent will authorise the children’s school and medical and allied health providers to provide the applicant with copies of any school reports, other reports or behavioural or health issues, school or other circulars and other information in respect of school or allied health and/or medical or extra-curricular activities.
(h)The parties shall use the “App Close” Parenting App or such other app as may be agreed in writing between them.
(i)Each of the parties be restrained from discussing the proceedings with the children.
(j)The applicant be restrained and an injunction granted restraining her from:
(i)Attending at the respondent’s residence without his consent;
(ii)Attending at any daycare facility, kindergarten or school attended by any of the children;
(iii)Taking any of the children to any medical practitioner, allied health practitioner, psychologist or counsellor without the prior written consent of the respondent; and
(iv)Communicating with the children’s medical and allied professionals other than with the prior written consent of the respondent which consent shall not be unreasonably withheld.
It is apparent from the orders sought by the ICL that it is unlikely that the Court would make a finding that the respondent has perpetrated sexual abuse towards the children and that he represents as an unacceptable risk such that the relationship between him and the children should be restricted solely to non-personal communication via letters and gifts to celebrate special events.
THE TREATMENT OF THE EVIDENCE
At the commencement of trial, the Court highlighted the provisions of Division 12A of the Act and in particular, whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The applicant’s contention is that the respondent has perpetrated ongoing family violence and has either sexually assaulted the children or presents as a manifest risk of doing so.
In M v M [1988] HCA 68 (“M v M”) the High Court gave consideration to the treatment of allegations of sexual abuse. The Court considered that treating an allegation of sexual abuse as the paramount issue was an error.
In Vasser v Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honours quoted at [51] with approval, the following passages from M v M (supra) at pages 77,080-82:-
19.…In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
20.But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds(1973) 47 ALJR 499; McKee v. McKee(1951) AC 352, at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J v Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463; 69 ALR 647.
21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362. There Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
The respondent was charged with multiple child sex offences in late 2022:[4]
[4] Exhibit “31”.
Count (1) alleges that between January 2022 and September 2022 the respondent induced X to expose a part of her body. The respondent allegedly showed X pornographic material over a period of time and asked her to expose her buttocks and imitate what the people did in the pornography videos.
Count (2) alleges that between January 2022 and September 2022 the respondent induced Y to expose a part of her body. It is alleged that the respondent also showed Y pornographic material over a period of time and asked her to expose her buttocks and imitate what the people did in the pornography videos.
Count (3) alleges that between January 2022 and September 2022 the respondent digitally penetrated Y, a person of the age of 4 years.
Consent Orders were made on 30 November 2021 that provided for the children to spend time with the respondent initially for a period of three hours on each Sunday between 12.00 pm and 3.00 pm but that it then be extended to four hours each alternating Sunday and Saturday with the respondent’s time to be supervised by members of his family but in particular his brother, Mr Q.
As a result of allegations made by Y that the respondent referred to his weapons and that children should show their bottoms to people, the applicant relies upon a letter written by her General Practitioner, Dr AA, that the children were anxious about seeing the respondent and ideally, his time with them should be supervised by Ms G.
On 29 April 2022 the applicant ceased time between the respondent and the children unless he agreed to supervision by Ms G. The respondent recommences time spending with the children subject to supervision by Ms G for the first two hours. As considered, the last time that the respondent spent time with the children was on 3 September 2022.
The reality of the situation is that the opportunity for the respondent to have committed the offending that comprised counts 1, 2 and 3 on the information or any other conduct that might fall under the umbrella of child sexual abuse is limited either to the initial period after the Consent Orders of 30 November 2021 when the respondent’s time was supervised by members of his family or as and from 18 June 2022 to 3 September 2022 when the respondent’s time was subject to supervision by Ms G for the first two hours.
In the various trial management stages, the allegations made by the applicant, that the respondent had engaged in serious child abuse and that he had been the subject of arrest on the day of separation and then again in September 2022, was apparent. Moreover, it was foreshadowed that it would likely be a part of the applicant’s case that she would seek a finding on the balance of probabilities that the respondent had perpetrated sexual abuse including showing a child pornographic material, inducing the child to expose her bottom and genitals and then to have sexually assaulted a child.
A consideration was raised as to whether the Court should dispense with the provisions of s 69ZT of the Act.

Counsel agreed that the provisions of s 69ZT should apply in particular, in circumstances where the applicant’s case was not just an assertion that the respondent presented as an unacceptable risk of harm to the children but where she sought specific findings in relation to a number of incidents of sexual assault and sexual abuse.
In determining whether the provisions of Evidence Act should apply, consideration must be given to s 69ZT(3) of the Act namely, I must be satisfied that the circumstances are exceptional and I have had regard to the following matters:
(i)The importance of the evidence in proceedings;
(ii)The nature of the subject matter of the proceedings;
(iii)The probative value of the evidence; and
(iv)The power of the Court (if any) to adjourn the hearing to make another order or to give a direction in relation to the evidence.
In the decision of Maluka & Maluka [2012] FamCA 373, Coleman J said:
28.As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is, in the Court’s view, likely to be mischievous, and not just for one party.
…
32.It is a matter of significance within section 69ZT(3)(a)(i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M v M (supra), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings.
…
37.Perhaps for present purposes the short and simple answer is that particularly in the context of determining disputed issues of fact or belief with respect to domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence any significant weight in the exercise of the Court’s fact-finding functions.
It could not be said that the applicant’s evidence had been prepared in a manner consistent with the more stringent application of the rules of evidence than would ordinarily be the case pursuant to s 69ZT(1) of the Act.
At the commencement of the proceedings substantial time was given to a consideration of objections to the evidence of each of the parties. It is a reasonable observation that much of the evidence contained in the trial affidavits was struck out.
It was also apparent that the primary trial affidavits of each of the parties had not been the subject of counsel scrutiny. Given the significant costs incurred by each of the parties, the preparation of trial affidavits, replete with inadmissible material, is difficult to reconcile.
THE EVIDENCE
The applicant
The applicant alleges that the respondent engaged in entrenched family violence that included aggressive and demeaning conduct, coercive control, financial control and aggressive sexual demands involving sexual assault.
The respondent denies the allegations of family violence including sexual assault, coercive and controlling conduct and financial constraints however he agrees that the parties had what might be considered a traditional relationship in that he was expected to work and at times for extended hours whereas the applicant was to fulfil a homemaker role.
The applicant considered the joint NAB Bank Accounts for the period 24 April 2020 to 23 June 2020. She conceded that each of the parties had their own access card and that she was able to withdraw money from the account with an understanding that at the very least she would pay for household bills.
The applicant acknowledged that she and the respondent jointly purchased the Suburb D property in July 2014 with part of the deposit in the sum of $48,000 being provided by the respondent’s brother. Whilst not agreeing with the evidence of the applicant, she conceded that the respondent may have had some savings.
Initially, the parties could not afford to live in the Suburb D property until about 2017. During this time the applicant’s parents provided some assistance and whilst the applicant was working in a part-time role, it was agreed that she would have access to between $200 and $500 per week.
The applicant gave credible evidence as to her future intentions to return to the work force. As at the date of trial the applicant was undergoing training and her evidence impresses as to her genuine intention to return to the work force save and except for any impediment that arises out of the care of the children. The primary focus is in respect of Z’s high medical needs.
The applicant is focussed on Z attending preschool in 2025 as the appropriate time to consider re-entry into the work force.
The applicant acknowledged that the respondent had paid child support as assessed which is currently in the sum of $389 per week.
The applicant foreshadowed that she has given active consideration to applying for a change of the assessment because of:
(a)The costs of raising the children are higher because of their special needs in particular, the children’s medical and therapy expenses;
(b)The costs of the children being educated in a way both parents intended (private school fees); and
(c)The superior income and financial resources of the respondent.
The applicant conceded that any allegation relating to the respondent receiving “undisclosed, non-taxable income and cash” was a matter not now to be pursued.
The parties remain in dispute as to the manner in which the children should be educated. The respondent does not agree that it was the joint position of the parties that the children, when they reach school enrolment age, should attend BB School. The respondent’s position is that the children should have gone to either CC School or DD School. A concern now is that the respondent does not feel welcome at the children’s school.
At present, Z is enrolled in preschool and whilst the current fee structure is $120 to $140 per day, the applicant’s current circumstances entitle her to an 80 to 90 per cent subsidy.
As considered, the applicant seeks a lump sum amounting to the arrears of spousal maintenance pursuant to an order and then a further lump sum to capitalise a future order for spousal maintenance until February 2025. The respondent concedes that until 2025 the applicant satisfies the threshold test with the focus to be upon the proper needs of the applicant tempered by the ability of the amount sought and if not, whether there should be a lump sum and if so, whether it should be paid from the respondent’s share of property settlement consequent upon the sale of the Suburb D property. Simply put, the issue in respect of spousal maintenance is one of quantum not entitlement.
Before separation, the parties, but in particular the applicant, had the use of Motor vehicle 1 (“Motor vehicle 1”) with an approximate value of $50,000. The respondent’s father provided the car and is prepared for the applicant to retain it providing she is prepared to pay for the motor vehicle as valued.
The initial position of the applicant is to accept the respondent’s father’s proposal.
A better way of dealing with the motor vehicle is for it to be treated as property of the parties but with a corresponding liability to the respondent’s father. It can then be adjusted with other property of the parties.
The applicant agreed that following the respondent’s arrest in April 2021, she returned to the Suburb D property to remove furniture and personal affects for the children and herself. Apparently, the applicant did not enter the property but instructed two friends to do so. The applicant denies the respondent’s contention that she effectively ransacked the property and removed most of the furniture and effects that were present at separation.
Moreover, the applicant’s evidence is that when she went back into the house in April 2023, she considered it was in a terrible state and formed the view that the condition of the property, including a belief that part of the garden had been poisoned by the respondent, was a deliberate attempt to reduce the value of the property.
In April 2021, the applicant withdrew $5,000 from the NAB Account. The applicant was asked to consider the NAB Bank Statement for the period starting 24 April 2021 (Exhibit “16”) and in particular, the descriptor for a transaction on a particular day showing a withdrawal of $5,000. The applicant agreed that the description for the withdrawal for land tax was incorrect.
The evidence, self-evident from the NAB bank statement, is that over a relatively short period the applicant withdrew the sum of about $12,000. Of that sum, a significant amount was utilised by her for the payment of legal fees to her former solicitors.
Whilst the evidence supports a finding that the applicant withdrew money from the joint account without the knowledge and consent of the respondent albeit primarily for the purpose of her legal fees, given the current state of legal fees, both paid and outstanding, not much now turns on the applicant’s motivation and conduct.
The applicant agreed that as at the date of separation she had made a complaint to the police that the respondent had assaulted her. As a direct result of her allegation and complaint, the respondent was arrested and taken into custody. The criminal charge was the subject of proceedings in the Magistrates Court. There was significant interaction between the applicant and prosecutors working with the police and the director of public prosecutions.
The criminal trial did not eventuate. The applicant conceded that she had signed documents requesting that the criminal proceedings be abandoned. As a result, the Intervention Order was also withdrawn.
There is no suggestion arising from the applicant’s evidence that in some way the respondent intervened and either persuaded, or in some way intimidated, the applicant to withdraw the complaint and not proceed with the trial.
The applicant’s evidence is that the first occasion that any of the children made any allegation was at about the time that the criminal charges were withdrawn although it is the applicant’s evidence that in April 2022 Y spoke of the respondent having weapons in his possession and that he had said to her that children should show their bottoms to people.
The applicant was asked to consider the contents of her first affidavit filed 11 June 2021. Whilst the applicant referred to the conduct of the respondent as demonstrating severe family violence predominantly directed to her but also on occasion involving the children there are no matters raised by the applicant that relates to sexual abuse or sexual assault of the children. The affidavit is a detailed document and the reasonable proposition put to the applicant is that the absence of any allegation or alleged disclosure of sexual abuse is not merely an omission but rather evidence that at the time it was not a matter of concern to her.
In evidence the applicant agreed that whilst family violence was an unfortunate feature of the relationship of the parties, prior to separation there was no complaint concerning child sexual abuse or any prurient interest in the children.
A feature of the applicant’s case are the transcribed conversations between the applicant and the children comprising exhibit “17”.
The applicant’s evidence is that at some point, but likely as and from January 2022 when the children spoke of showing their bottoms, the applicant formed the view that the children were regressing in their behaviour and decided that she would record the children’s alleged disclosures both electronically via her phone or recorded physically in a notebook.
The applicant made contact with Detective EE (“Detective EE”) who became her police contact. The applicant gave Detective EE her telephone to enable the police to download the various audio recordings.
In broad terms, the applicant conceded that she had undertaken a number of recordings made in the presence of both X and Y often taking place in the car.
The applicant’s evidence supports a finding that there was a significant topic of conversation between 2022 and 2023 with X and Y relating to sexual abuse. Whilst the applicant denied that sexual abuse was a regular topic of conversation, the evidence supports a contrary finding.
The applicant agreed that the allegations of sexual abuse were being raised by the children at about the same time as the respondent was seeking, and being given, more time with the children and in particular, the possibility of overnight time.
For reasons that are not entirely clear, the applicant was reluctant to concede that the purpose of providing the audio recordings containing purported disclosures was to facilitate Detective EE in pursuing a criminal prosecution against the respondent.
The transcribed audio recordings comprise exhibit “17”. Without it being necessary to be comprehensive of everything contained in exhibit “17”, the applicant’s evidence provides important context in order to determine the weight to be attributed to the recordings.
WM1 – 15 April 2022 at 5:59pm
The applicant recollects that she and the children were crossing over a bridge coming into the city following the conclusion of the respondent’s time with the children.
In particular, the applicant considers that ten minutes prior to the recording Y appeared disturbed and upset. The following extracts are relevant:[5]
[5] Exhibit “17”, p 1–2.
[Applicant]:     Um what did he ask you to say again
[Y]:                Um that he wasn’t angry but after that he said okay okay I was angry
[Applicant]:     Wait [X]. Was [X] with you
[Y]:                Yes
[Applicant]:     SO was it, was it at home that he asked you to say that
[Y]:                No
[Applicant]:     When did he
[Y]:                But after when he said that he said okay okay I was angry
[Applicant]:     When did he ask you. [X] you know when wanted to talk to me before? Right we just need to give [Y] the time to talk to me
[X]:But he didn’t say that
[Y]:               Yes he did
[Applicant]:     Okay just wait [X]. Stop telling her that what she’s saying happened or not. Let her talk. Yep
[Y]:               He said okay okay
[Applicant]:     But what did, when did he say the other thing
[Y]:               At the [...] factory
[Applicant]:     Did he say something at [Grandma]…
[Y]:               No
[Applicant]:     So what, what did he…did he ask you to say it? Or did you tell him that he used to get angry
[Y]:I didn’t tell him that he used to be angry and he said he wasn’t angry. But after that he said okay okay I was angry
[Applicant]:     And when did he say for you to copy his words
[Y]:               Every single time
…
[Y]:               He said [Y] you need to say that
[Applicant]:     Are you sure? [X] just a moment. Please stop doing that so I can try and understand what [Y] is saying to me. [Dad] wanted you to say to him that he wasn’t angry
[Y]:               And he said okay okay I was angry
WM2 – 1 May 2022 at 4.36pm
The applicant recollects that she and the children were on their way to church. Y had been at her uncle’s house and allegedly had pulled her pants down.
[Applicant]:     Yeah
[Y]:                Is that when Jesus
[Applicant]:     The song it was yeah. What were these secrets about bottoms [Y]?
[Y]:                Um just on the phone
[Applicant]:     What on the phone?
[Y]:                The bottoms without their clothes
[Applicant]:     Secrets on the phone without their clothes? On who’s phone?
[Y]:                [Dad’s]
[Applicant]:     On [Dad’s] phone, was it an older person or a kid?
[Y]:                Older person
[Applicant]:     An older person. And what were they doing?
[Y]:                Showing their bottom
[Applicant]:     Showing their bottom, did you know the person?
[Y]:                No
[Applicant]:     Did you see that [X]?
[X]:No
…
[Applicant]:     Why did he show you of something of someone touching their bottom on the phone?
[Y]:               Cos he likes it but I don’t
[Applicant]:     He likes it? Likes what?
[Y]:               Showing bottom
…
[Applicant]:     [Y] was anyone else there when he was showing you the phone?
[Y]:               Yeah
[Applicant]:     Who? Do you remember?
[Y]:               [Mr Q]
[Applicant]:     Hm?
[Y]:               [Mr Q]
[Applicant]:     [Mr Q] ahuh and what did [Mr Q] say?
[Y]:He said good and [redacted] was next to [Mr Q] and she was a bit angry about what he was showing me.
[Applicant]:     She was angry about what [Dad] was showing [Y]?
[Y]:               Yeah [Mr Q]
…
[Applicant]:     Yeah I got a little bit frustrated, yeah I felt very sad. What do you remember.
[Y]:               Both of you felt frustrated. Nope. Just you? Or not
[X]:When will we be at church?
[Applicant]:     Very soon sweetheart. Frustrated about what sweet heart?
[X]:You are frustrated of something you didn’t like
[Applicant]:     There were things I didn’t like, that’s why now I’ve said I don’t like those things. Don’t like somethings that use to happen. Did [redacted] say anything else about what she remembered to you?
[X]:Yep
[Applicant]:     What did, what else did she say
[X]:That you were frustrated on somethings
[Applicant]:     Uhuh
[X]:But you were angry at a kangaroo
[Applicant]:     Sorry
[X]:Angry at kangaroo at the… they were making pigs? Just pigs, just pigs not them
[Applicant]:     [X] why do you think [redacted] was a bit angry about what um dad was showing on his phone
[X]:Because he was showing bottoms.
[Applicant]:     He was showing bottoms, what were the people doing in the, was it a video or photo and what were the people doing?
[X]:A photo
[Y]:Was a video
[X]:It was a photo
[Applicant]:     It was a photo and a video. And what were the people doing
[X]:Touching their bottoms
[Applicant]:     Ok with no clothes on?
[X]:Yeah and with clothes
[Applicant]:     And with clothes, were they laughing or were they angry
[X]:They were laughing
…
WM3 – 22 July 2022 at 7.50pm
The applicant confirms that X was at the paternal grandparents’ home. At the very least’ the paternal grandparents were present together with Ms G.
During this period the applicant was still facilitating time between the respondent and the children. The applicant agrees that she instigated the conversation with the children by setting up her mobile phone in her bedroom and activating it to record mode before speaking to X.
[Applicant]:     [X] let’s get PJ’s. [X]
[X]:Yeah
[Applicant]:     PJ’s. Sweet can you come here one sec. Can we just have a little learning chat.
[X]:Mmhmm
[Applicant]:     Yeah. Come. Do you want to sit? And look for your PJ’s too.
[X]:They’re right there
[Applicant]:     Oh good. Sweetie. Has someone asked to see your privates
[X]:I told you
[Applicant]:     What’s that
[X]:You know at the shop
[Applicant]:     At the shop. Yeah what did you say? Someone asked you
[X]:[Dad]
[Applicant]:     When did [Dad] ask to see your privates
[X]:Well it might have been you know how I told you it was Friday or Saturday
[Applicant]:     Ah yeah you didn’t remember the date. But was it at [redacted] place or was it in a toilet
[X]:No remember it was I told you when we go in I usually like to go to quiet time in the lounge
[Applicant]:     Oh yeah at [Grandma]’s place
[X]:Yeah
…
[Applicant]:     Yeah. What else can you tell me about it
[X]:Well there’s not really nothing else
[Applicant]:     So did dad come into the room? And why did he ask to look at your privates?
[X]:I don’t know
[Applicant]:     Just like that? He asked to look at your privates?
[X]:Yes
[Applicant]:     And so what did you do
…
[X]:Well I just went to the other bedroom with the grey bed
[Applicant]:     To show him your privates?
[X]:No. I wanted quiet time
[Applicant]:     So you walked away?
[X]:Yep
[Applicant]:     Did you show your bottom?
[X]:No.
[Applicant]:     What did he want to see your bottom for do you think?
[X]:I don’t know
[Applicant]:     Are you sure that’s what happened sweet?
[X]:Yes. It’s really what happened.
…
WM4 – 10 August 2022 at 8.58am

The orders sought by the respondent include a condition that the applicant attend for therapeutic assistance to enable her to better accept that the respondent does not present as a risk to the children and that it is in their best interests that they resume a relationship with him. I do not propose to impose such an obligation on the applicant. It is a matter for her. The parties are high functioning and I have confidence that the applicant will seek whatever assistance she considers is necessary for her to promote the children’s relationship with the respondent and to desist from the unnecessary harvesting and promotion of allegation and disclosure regarding the respondent.
On balance, the children’s interests will be significantly better served by maintaining a relationship with each of the parties which of necessity requires a resumption of them spending time with the respondent.
The parties but in particular the applicant must be vigilant to ensure that the children do not go through their life maintaining a false belief that they were the subject of abuse by the respondent. Ms W speaks of the significant adverse future consequences for the children in those circumstances.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by considering the best interests of the children. I do not consider that either the applicant or the respondent present as a direct physical threat to the children and whilst there is good reason why the parties would not wish to enter into any level of communication with each other, there is no reason why they should not be able to reach a consensus as to major parenting issues likely to impact the childrens’ lives.
There are two aspects that are of concern. I am not of the view that the parties would readily agree on medical issues impacting the children but in particular, Z. I propose to give the applicant sole parental responsibility for decisions relating to the children’s health. In order to limit the scope of such an order, each of the parties will be restrained from engaging any of the children in therapy or counselling without their joint consent.
The parties remain in disagreement as to whether the children should attend BB School or a public school as nominated by the respondent.
It is not suggested that BB School is not able to provide a high level of education for the children. The difficulty is that the respondent feels compromised by his perceived view that the applicant has advised the school of the allegations and any interaction with the school by him is subject to limitation and a level of mistrust.
The children need stability and as they are to resume a relationship with the respondent it is important that the level of disruption be limited as much as possible.
I propose to order that the children continue at the BB School and if considered necessary then a copy of the judgment in an anonymised form can be given to the school administration.
In summary, other than the issue of the children’s medical needs being the sole responsibility of the applicant, the parties will have shared parental responsibility.
PROPERTY SETTLEMENT
The parties whilst not in agreement are not significantly apart either as to the apportionment of assets nor the treatment of superannuation by a splitting order in favour of the applicant.
The parties commenced their relationship in November 2014 and separated in April 2021 being a period of about six and a half years. There are three children of the relationship.
The parties agree that the most significant asset is the Suburb D property. Neither party currently resides in the Suburb D property and the parties agree that it should be placed on the market for sale as soon as it is possible to do so and seek consent orders as set out in a minute of order dated 16 July 2024.
The parties are in disagreement as to the division of furniture and effects. No evidence was presented by either party that would enable the Court to ascertain the value of furniture and effects in the possession of the applicant or the respondent. The Court was not advised as to why a valuation of furniture and effects was not sought. Whilst it is unfortunate that the issue has consumed significant attention by each of the parties, in the absence of assistance there is no evidence that would enable the Court to determine on the balance of probabilities whether the applicant removed most of the valuable furniture and effects or whether, as she asserts, it was left for the respondent.
I propose to ignore and not bring to account the furniture and effects of the parties.
The parties are not agreed as to their personal and joint bank accounts. There is some evidence that as at 23 October 2023 there was the sum of $11,478 in the joint NAB Bank Account. I assume that those funds have been used by one or other of the parties and no longer exists.
I also bring to account the respondent’s evidence that as at the date of separation, the applicant had access to between $10,000 and $15,000 dollars sitting in various accounts. Again, it is likely that if monies were retained by the applicant they have since been spent on normal and every day household expenses both for the applicant and the children.
The parties were also in disagreement as to the status of Motor vehicle 1 owned by the respondent’s father or an entity controlled by him and driven by the parties but in particular, the applicant, over a significant period of the relationship. The applicant would wish to retain the motor vehicle and the respondent’s father has proposed that she purchase it for the sum of $50,000.
Given the manner in which the vehicle has been used and apparently without any condition imposed, it is reasonable for Motor vehicle 1 to be included in the assets of the parties but with a corresponding liability of $50,000.
In summary, the assets of the parties comprise the Suburb D property in the sum of about $1,850,000 together with a corresponding liability of about $642,380. Motor vehicle 1 will be included at $50,000 but offset by a corresponding liability of the same amount.
The applicant identifies a sum of $128,109 being monies owed to her parents together with a substantial outstanding debt to her solicitors.
I am not satisfied as to the certainty of any arrangements as between the applicant and her parents concerning monies that they have generously provided to her but I do not consider that there is any basis for monies provided to be brought to account as a joint matrimonial liability.
Following separation and pursuant to orders made 19 April 2023, the applicant was entitled to receive, by way of spousal maintenance, the net rental income for the Suburb D property up to an amount specified in the order. The only other consideration in determining the assets of the parties is the extent to which money received by each of them by way of interim or partial settlement of property should be treated as an addback.
As considered, I do not propose to addback money allegedly withdrawn by the applicant initially in the sum of $12,000 and then over the three-month period following separation a further $3,000.
Orders made on 3 August 2021 gave each of the parties an interim payment of $15,000 which was funded by a mortgage redraw facility. The money was used by the parties for their legal fees, and I consider that it is appropriate for it to be added back.
By Consent Orders made 26 May 2022, the applicant received a further payment of $62,000 from the mortgage redraw facility. The respondent seeks that this money be added back. In the ordinary course legal fees paid by the parties from money derived from property should be added back (see NHC & RCH (2004) FLC 93-204).
The applicant received substantial financial assistance from her parents although it is her contention that it should be treated as a loan and therefore there is an obligation for it to be repaid.
For his part, the respondent was able to pay his legal fees from his income and from other resources. The applicant has paid costs to date of $245,708 and has fees, costs and disbursements outstanding in the sum of $279,672.
It was not argued that any consideration of adding back the money received by way of partial property settlement should be offset by the respondent’s superior financial position.
The parties have each incurred substantial legal fees that I consider were not necessarily warranted by the issues that separate them.
As such, I consider the interim property settlement received by the applicant should be added back.
The schedule of assets and liabilities are as follows:
Assets

C Street, Suburb D Joint $1,800,000

Interim distribution received by applicant Applicant $15,000

Interim distribution received by respondent Respondent $15,000

Interim settlement of property received by applicant Applicant $62,000

Motor vehicle 1 Joint $50,000

TOTAL $1,942,000
Liabilities

NAB Home Loan (as at 15 November 2023) Joint $642,380

Motor vehicle 1 Joint $50,000

TOTAL $692,380
Superannuation

Super fund 2 Wife $30,225

Super fund 1 Husband $137,474

The total net non-superannuation assets are in the sum of $1,249,620 together with a total of $167,699 in superannuation.
Given the marital relationship, the three children of the parties and the separate orders sought by each of them I consider that it is just and equitable to make orders that will bring finality to their financial circumstances.
CONTRIBUTIONS
The parties are not agreed as to the treatment of their respective financial and non-financial contributions. The applicant considers that she had the following assets as at the date of the commencement of their relationship on 29 November 2014:
·Savings of approximately $10,000.
·Motor vehicle 2 $13,000.
·Furniture and effects.
·Personal possessions.
·Superannuation of approximately $15,000.
The applicant does not agree with the respondent’s recollection of his assets at the time of the commencement of cohabitation including the following:
·Savings of $80,000.
·Furniture and personal effects of minimal value.
The Suburb D property was purchased in 2014 for the sum of approximately $950,000. At the time, the parties were engaged, and the property was registered in their joint names. The applicant recollects that the respondent’s parents provided a bank guarantee to assist in the purchase of the Suburb D property and the respondent’s brother Mr T, loaned the parties the sum of $48,000 to assist with the initial payment.
The applicant does not concede that the respondent held savings of $80,000.
There is no evidence by way of a settlement statement which would assist in confirming the respondent’s position that the parties had an initial deposit of $128,000 comprising $80,000 from the respondent’s savings and $48,000 by way of money provided from the respondent’s brother, Mr T.
Whilst the current mortgage balance of $642,380 may suggest that over a period of 10 years a reduction of more than $300,000 would suggest that the initial contribution would have been greater than the assistance provided by the respondent’s brother, there is scant evidence to enable a reliable determination.
The parties were assisted during the course of cohabitation by the respondent’s parents providing a motor vehicle for the family to use. I accept the respondent’s evidence that the parties were not required to make any payments towards the vehicle other than fuel. In 2019 the motor vehicle was traded-in and the respondent’s parents purchased Motor vehicle 1 for the family. It is that vehicle that the applicant seeks to retain given that there is now agreement that it should be brought to account at the sum of $50,000 but with a corresponding liability to the respondent’s parents of $50,000.
During the relationship each of the parties’ parents were generous. The respondent’s father would provide cash advances which amounted to about $200 per week over the initial three-year period of cohabitation.
I accept that the applicant’s parents also provided the sum of $600 each month to assist the parties with their rental obligations.
It is not controversial that each of the parties were heavily invested in seeking to promote the financial security of the family.
The respondent has always worked in business and will continue to do so. The enterprise is financially successful and the respondent’s remuneration was and is reasonable and secure.
Initially, the applicant was employed in the public service and then in private enterprise before deciding that she would cease employment to remain home and care for their children. In addition, the applicant was able to generate income via her qualification as an educator and an allied health worker. She also began selling products online in 2016.
In 2018 the requirements of the children were such that the applicant was not able to maintain any continuous paid employment.
I accept that the respondent promoted the applicant to undertake the duties of a homemaker whereas he would maintain steady income.
Whilst the parties are not agreed as to the extent to which the respondent was “hands on” with the care of the children, even were it to be the case that the respondent did assist when he was able to do so, the agreed position between the parties was the primary carer.
Moreover, each of the children and to a varying degree presented with health and behavioural issues. Whilst I do not intend to minimise the parenting requirements for Y and X, it is likely that the applicant’s time was heavily weighted to providing a high level of care for Z.
Following separation, the applicant concedes that she transferred $13,000 from the joint account of the parties in order to support herself and the children. Some of the money was used to pay for legal fees but most of the money retained was disbursed on the payment of day-to-day living expenses.
Following separation, the applicant and the children have lived with the maternal grandparents whose support of the applicant has been timely assistance.
There is complaint by the applicant as to the extent of the child support paid by the respondent.
The Financial Statements filed by the respondent on 23 July 2021, 17 February 2023 and 28 March 2024 does not disclose the extent of child support assessed and paid.
After separation the respondent has continued to pay the mortgage payments on the Suburb D property which are currently in the sum of about $1,178 per week. Since separation, the respondent has paid a total amount of about $132,840 towards mortgage repayments.
The applicant also had the benefit of receiving the net rental of about $850 per week since 3 October 2023 in or about the total sum of $17,924.13.
The current child support assessment is in the sum of $1,690 per month.
A determination as to the apportionment to properly reflect the contributions of the parties must be undertaken as a holistic approach. It is likely that at the commencement of cohabitation, the financial contribution principally arising from monies provided by the respondent’s brother and also likely the respondent’s personal savings exceeded the property held by the applicant. During the course of the relationship the parties agree that they adopted a “traditional” arrangement with significant assistance from time to time from the maternal and paternal families. Post separation the applicant has had the primary care of the children and in particular attending to their special needs.
The net pool of assets is about $1,249,620 with the final figure to be adjusted depending upon the sale price achieved for the Suburb D property.
I consider that there is not one factor relating to contribution that requires special consideration and as such I find that the contribution of the parties should be considered as equal.
SECTION 75(2) FACTORS
The respondent is employed as a manager in his family’s business and has an average weekly income of about $2,000 per week. I have found that his employment is secure and as time passes it is likely that he will take on higher duties which will necessarily command a higher level of income.
The financial circumstances of the applicant are dependent upon a government benefit of $373 per week together with child support paid in the sum of $423.37 per week resulting in a total income of $796 per week. In addition, I accept that the applicant’s expenses are supported by assistance provided by the maternal grandparents in particular, by providing rent free board and some further benefit for nappies, groceries and other expenses.
There is some uncertainty as to whether money and benefit provided by the applicant’s parents will be required to be repaid. I suspect that much will depend upon the outcome of the proceedings and the extent of net benefit to the applicant following the payment of her extensive legal fees.
The children will remain in the primary care of the applicant however they will increasingly spend time with the respondent.
The applicant properly concedes that when Z is able to enter formal school education in February 2025, she has confidence that she will find paid employment.
It is to the applicant’s credit that she makes the concession of the potential for future employment but I do not ignore that the needs of the children but in particular Z may well limit the extent to which her potential employment opportunities can be undertaken and fulfilled.
The applicant has history of commencing employment but being required to prioritise the needs of the children.
Exhibit “2” in the proceedings comprises a schedule of the applicant’s assessment of the likely future costs for the care of the children. I do not find that the schedule of expenses should be considered as accurate. It is likely that some of the expenses will not be incurred or if they are not at the level as presented by the applicant.
I am persuaded however, that the likely expenses for the children would be more than ordinarily expected according to a consideration of the assessment of what is required for children of this age.
Neither party will have easy transition to accommodation away from the homes of their respective parents.
The applicant proposes that there be an effective adjustment in her favour of 25 per cent. Taking into account a net asset pool of about $1,249,620, 25 per cent represents an amount of $312,405 but in reality, a differential amount of $624,810.
A determination of issues in respect of contribution and s 75(2) factors is not a discussion limited to a percentage adjustment but rather requires the further consideration of what that represents as a dollar value.
I do not consider that a 25 per cent adjustment is appropriate.
The respondent proposes an adjustment of about 15 per cent which represents the sum of $187,443, but a differential of $374,886.
The significant difference between the parties is the disparity in income but also in terms of future employment opportunities.
If the mid to long term future is considered, the respondent’s financial security is significantly superior to that of the applicant.
The consideration of s 75(2) factors should not be a matter of social engineering but rather a proper consideration of the impact of the relationship on the parties in terms of their future circumstances.
I also bring to account that the applicant still has a significant liability to her solicitors and possibly an outstanding liability to her parents.
All things considered, I propose to make a further adjustment in favour of the applicant of 17.5 per cent, $218,835 representing a differential of $437,367.
A consideration of the parties’ equal contributions and an adjustment in favour of the applicant of 17.5 per cent for s 75(2) factors results in a 67.5/23.5 division in favour of the applicant.
On the basis that the net non-superannuation pool is $1,249,620, the applicant is to receive 67.5 per cent resulting in a notional sum of $843,493.

The parties are agreed that the Suburb D property is to be sold. Accordingly, the other property of the parties is comprised as follows:

Applicant’s interim property settlement $77,000

Respondent’s interim property settlement $15,000

Motor vehicle 1 $50,000

TOTAL $142,000

Less loan to respondent’s parents for Motor vehicle 1 $50,000

TOTAL $92,000

If the applicant retains her interim property settlement of $77,000 and Motor vehicle 1 of $50,000 she retains total property (excluding her share of net proceeds of sale of property) in the sum of $127,000. However, 67.5 per cent of $92,000 is $62,100 requiring a payment from the applicant’s share of the sale proceeds of the Suburb D property to the respondent of $64,900.
SUPERANNUATION
The applicant seeks that there be a superannuation split of the total respective superannuation entitlements of the parties of 55 per cent in her favour.
There is no assistance provided as to the basis for the adjustment sought.
The respondent seeks that the superannuation entitlements of the parties be adjusted to equality.
I am obliged to consider factors that would be relevant to the separate contributions of the parties and then in respect of s 75(2) factors.
Each of the parties commenced cohabitation with some level of superannuation entitlement.
The parties’ contribution towards their superannuation entitlements should be considered as equal. Whilst the dominant entitlement is that of the respondent, his ability to undertake his employment was as a result of the applicant fulfilling her role as homemaker and in particular providing the primary care to the children.
In terms of s 75(2) factors, the applicant will return to employment in 2025 however, I accept that her ability to participate in full-time employment will be limited by her primary obligation which is to care for the children.
The respondent will remain in secure employment and it is likely that there will be an increase in his salary.
The entitlements of the parties are held in accumulation funds. As such, there is nothing unusual as to the construct of the respondent’s superannuation fund and it will increase by sheer dint of the superannuation guarantee levy being credited to the respondent.
Whilst the respondent will likely accumulate superannuation entitlement at a faster rate than will be available to the applicant if for no other reason than because at present, he is in receipt of a salary whereas the applicant is not, the adjustment to bring to account the disparity in the income of each of the parties is a significant factor in the s 75(2) adjustment determined for the division of property. It would be double dipping to again bring to account the self-same factor.
As such, I consider there is merit in the order sought by the respondent namely, that the superannuation entitlements of the parties should be adjusted to equality which in this case results in a base amount of $53,625 being allocated to the applicant’s superannuation fund.
I note that exhibit “9” contains documents evidencing the proposed superannuation split and the consent of the respondent’s superannuation trustee. As such, I can be satisfied that the obligation of procedural fairness and notice given to the trustee has been satisfied.
SPOUSAL MAINTENANCE
The applicant seeks what affectively amounts to an enforcement application in respect of an assertion that pursuant to an order made by a Senior Judicial Registrar on 19 April 2023 the respondent was required to pay the applicant spousal maintenance in the sum of $1,056 per week, for 50 weeks, which equates to the total sum of $52,800 (less an amount that had been received from the rental of the Suburb D property).
As discussed, it is argued that if the net rental income received was less than the weekly sum of $1,056 there remained an obligation on the respondent to reimburse or top up the deficiency.
The order of 19 April 2023 provides as follows:
5.That the parties do all things necessary to direct the rental income of the [Suburb D] property to be applied:
a. in payment of the property manager expenses;
b.in payment of the amount of ONE THOUSAND AND FIFTY-SIX DOLLARS ($1,056.00) per week to the mother by way of spouse maintenance; and
c.any balance remaining to be deposited into a joint interest-bearing account in the name of both parties pending further order.
It is apparent that the order did not make any provision as to what would happen if the net rental income received fell short of the weekly sum as ordered.
Moreover, the construct of the order anticipates or contemplates that the payment to the applicant of an amount by way of spousal maintenance was to be disbursed from the rental income of the Suburb D property. Order 5(c) sets out what is to happen to any balance remaining namely that it be deposited into a joint account in the names of both parties.
I do not know what was contemplated by each of the parties nor indeed the basis upon which the Senior Judicial Registrar made the order. It is apparent from a plain reading of the order that the payment of spousal maintenance to the applicant was to be satisfied from the net rental income received by her following deduction of property manager expenses. As such, I find that the applicant’s entitlement to spousal maintenance is limited to the net rental income that she would receive up to a maximum of $1,056 whereupon any surplus would be retained for the benefit of the parties.
As such, I find there is no merit in the application for enforcement of the spousal maintenance order made on 19 April 2023 as amended on 21 April 2023.
The applicant also seeks that the respondent pay lump sum spousal maintenance in the sum of $102,124 calculated on the basis of spousal maintenance in the sum of $2,321 per week for a period of 44 weeks.
The period is limited to commencing from the date upon which the trial started until February 2025, when it is intended that Z will start formal school education.
The respondent has conceded that the applicant has an entitlement to spousal maintenance pursuant to s 74(1) of the Act. The remaining consideration is as to quantum bringing to account the reasonable needs of the applicant and the ability of the respondent to pay the amount determined and whether it should be a lump sum or a periodic payment.
The applicant calculates the weekly sum of $2,321 by reference to the following matters as set out in paragraph 585 of her trial affidavit:
1.Anticipated rental of $650 per week should the applicant move out of her parent’s home;
2. Private health insurance costs of $88 per week;
3.Weekly expenses as set out in Part N of the applicant’s financial statement filed 29 December 2023 of $575 per week;
4.A short fall in the children’s expenses as set out in Part N not covered by child support in the sum of $968; and
5. Car insurance, car registration and contents insurance costs of $40 per week.
The basis upon which a lump sum is sought is that the applicant then considers she may well have an opportunity to look for alternate accommodation.
The quantum of spousal maintenance should be considered only after there has been a determination of property settlement.
If as considered by the parties the Suburb D property is valued at $1,850,000, after the discharge of the mortgage liability of $635,900 the net proceeds of sale will be in or about $1,214,100. The applicant is to receive 67.5 per cent by way of a settlement sum being a total of $819,517 less the adjustment of $64,900 being a total of about $750,000.
I appreciate that the applicant will have outstanding legal fees of $420,000.
It is an unfortunate aspect of the proceedings that each of the parties have incurred legal fees, costs and charges that might be considered out of proportion to the issues that required judicial determination.
Ignoring whether the applicant will reimburse her parents for money that she says they provided to her either by direct payment or by the provision of board and accommodation, the net sum to the applicant could be between $300,000 and $350,000.
By reference to the applicant’s Financial Statement, she receives child support from the respondent in the sum of $423 per week being the current assessment. In addition, the applicant claims the sum of about $1,080, being the average weekly expenses for the children as set out in Part N of the Financial Statement less the child support currently paid.
As previously considered, exhibit “2” sets out the costs anticipated by the applicant to better manage the health considerations, general living expenses, education and extra-curricular activities for the children.
To a significant degree, the expenses sought by the applicant are by way of an ambit claim given that many of the expenses have not been incurred and at best there remains the potential but not necessarily the certainty that a particular cost will arise.
Under s 72(1) of the Act, it is necessary to draw a distinction between the applicant’s personal costs and those relating to the children.
In Stein & Stein (2000) FLC 93-004 ("Stein") the Full Court said at [56]:
56.In this case, the wife's duty to maintain her own children was only a duty to make an equitable contribution towards their support. The extent of that equitable contribution had not been evaluated by the trial Judge but could probably be said to have been non-existent having regard to the vast amount of wealth available to the husband. On that analysis, even if it was appropriate for the trial Judge to have taken into account the commitments of the wife necessary to enable the wife to support her children, it could not be said that the expenditure of monies on the children by the wife over and above the monies she would be able to obtain by way of appropriate assessment of child support could be seen as necessary expenditure by the wife. It certainly could not be seen as an element of her self-support.
The decision of Drysdale & Drysdale [2011] FamCAFC 85 distinguished Stein (supra) on the basis that a distinction should be drawn between a final order and an interim order. It is noted that an order for spousal maintenance may not have a relevant level of finality in that it can be the subject of variation, discharge or amendment.
It is conceivable that if the applicant’s plan to return to the workforce in February 2025 does not eventuate for reasons that are not within her control, then the order for spousal maintenance that she seeks may well be the subject of further application.
The calculation in terms of the necessary expenses of the applicant as opposed to the children is not straight forward.
I note that in exhibit “2” the applicant seeks to apportion private health cover in respect of medical expenses likely to be incurred for and on behalf of the children. The consideration is artificial. The applicant has private health cover, presumably on a family basis and as such it is an amount that should be recoverable entirely as her expense without adjustment or apportionment.
Given that there is, at this stage, some uncertainty as to the applicant’s future accommodation arrangements and the extent of the settlement sum that she will receive following the sale of the Suburb D property and the payment out of her outstanding legal fees, I propose to bring to account item 26 being the sum of $88 per week for health insurance together with the discretionary items as set out in Part N of her Financial Statement not including the sum of $350 for the payment of her legal fees. Accordingly, I assess the reasonable expenses of the applicant appropriate to be satisfied by an order of spousal maintenance in the sum of $664 per week.
The respondent receives income of $2,000 per week and claims the total of his personal fixed expenditure as set out in Part G of his Financial Statement filed 28 March 2024 in the sum of $2,247 together with Part N expenses in the sum of $200 totalling $2,447.
Upon the sale of the Suburb D property the respondent will no longer have mortgage payments, rates, taxes and home insurance totalling $1,302 leaving a balance of $1,144.
Without the payment of the Suburb D house expenses the respondent has sufficient surplus to satisfy the quantum of spousal maintenance assessed at $664 per week.
Not dissimilar to the applicant, the personal circumstances of the respondent may well change. I do not expect that either of the parties would wish to remain in the separate homes of their parents and as soon as their finances allow it, it is likely they will seek alternate accommodation.
Having said that, there is no evidence as to any precise future arrangements and given that February 2025 is now only six months away, any change in the parties’ circumstances may not make much difference.
Whilst it may be difficult to assess with precision when the Suburb D property will be sold and settlement takes place, I do not consider that the respondent is impecunious. Whilst the amount he will receive by way of a settlement sum consequent upon the sale of the Suburb D property will be a modest sum, in circumstances where the total lump sum payable to the applicant for a period of 30 weeks (from the date of trial) is in the sum of $19,920, it is within the reasonable financial resource of the respondent.
Accordingly, I propose to round up the sum payable to $20,000 to be an additional sum payable to the applicant from her share of the net proceeds of sale of the Suburb D property.
I make orders as appear at the commencement of these reasons.

I certify that the preceding seven hundred and twenty-one (721) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 23 July 2024

File number(s):	ADC 2811 of 2021
Judgment of:	BERMAN J
Date of judgment:	23 July 2024
Catchwords:	FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Consideration of family violence – Allegations of sexual abuse – Where the wife seeks a finding that the children were sexually abused by the husband – Where the Court finds that sexual abuse could have only occurred at the paternal grandparents’ home following supervised time – Consideration of the reliability of the children’s disclosures – Where the children have been subjected to repeated investigations, assessments, interviews and discussions – Where the wife used every opportunity to notify and raise allegations – Where the Court finds the husband did not sexually abuse the children – Where the wife’s beliefs are genuine nonetheless without foundation – Consideration of unacceptable risk of harm – Where the evidence does not support a finding of the husband being an unacceptable risk of harm – Consideration of meaningful relationship – Where the children have not spent time with the husband for two years – Where the children fulsomely engaged with the husband during supervised visits – Where the wife asserts that she will support a relationship if no finding of sexual abuse – Where the Court finds that the children would benefit from a meaningful relationship with the husband – Where the ICL promotes significant time with the children and the husband – Orders made for a graduated increase in time with the husband. FAMILY LAW – PROPERTY – Modest asset pool – Where the parties’ proposals are 10 per cent apart – Consideration of contributions – Where the parties’ took on traditional roles within the marriage – Contributions considered equal – Consideration of future needs factors – Where the husband has a greater income earning capacity – Where the wife is the primary carer – Consideration of a child’s significant medical needs – Adjustment made in the wife’s favour – Consideration of addbacks – Where the legal fees incurred are disproportionate to the issues – Where the Court declines to addback legal fees – Orders made for the interim property settlement funds to be added back – Orders. FAMILY LAW – SPOUSAL MAINTENANCE – Interim and lump sum – where the husband concedes that the wife is entitled to spousal maintenance – Consideration of quantum of spousal maintenance – Assessment of reasonable expenses – Orders made for a lump sum payment.
Legislation:	Evidence Act 1995 (Cth) 140 Family Law Act 1975 (Cth) Division 12A, ss 4AB, 60B, 60CA, 60CC, 61DA, 69ZT, 69ZV, 69ZW, 72, 74, 75, 79. Criminal Procedure Act 1921 (SA) s 103
Cases cited:	Amador & Amador [2009] FamCAFC 196 Baglio & Baglio [2013] FamCA 105 Briginshaw v Briginshaw [1938] HCA 34 Drysdale & Drysdale [2011] FamCAFC 85 Fitzwater v Fitzwater (2019) 60 Fam LR 212 Harridge & Harridge [2010] FamCA 445 Isles & Nelissen (2022) FLC 94-092 M v M [1988] HCA 68 Maluka & Maluka [2012] FamCA 373 N & S & The Separate Representative (1996) FLC 92-655 NHC & RCH (2004) FLC 93-204 Sawant & Karanth [2014] FamCAFC 235 S v R (1999) FLC 92-834 S v S [1993] NZ FLR 657 Stein & Stein (2000) FLC 93-004 Vasser v Taylor-Black (2007) FLC 93-329 VJ v CJ (1997) FLC 92-772
Division:	Division 1 First Instance
Number of paragraphs:	721
Date of hearing:	2-5, 8-12, 15-19 April and 6-7 May 2024
Place:	Adelaide
Counsel for the Applicant:	Mr Bowler
Solicitor for the Applicant:	Eastern Legal
Counsel for the Respondent:	Ms Ross together with Mr Kane
Solicitor for the Respondent:	Alex Mandry Legal Group
Counsel for the Independent Children's Lawyer:	Ms Lindsay
Solicitor for the Independent Children's Lawyer:	Ryder Family Law

ADC 2811 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MONETTE Applicant
AND:	MR MONETTE Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	23 JULY 2024

Legal fees billed and paid to date (including counsel fees and disbursements)	$110,162
Legal fees and disbursements billed but not yet paid	Solicitor: $7,704 Counsel: $30,010
Funds in solicitor’s Trust Account	$2,240
Total of outstanding costs unbilled to date	$227,826
Future anticipated costs to the conclusion of the final hearing	Solicitor: E$52,000 Counsel: E$125,000-$157,300

Costs paid to date	$245,708
Unbilled work in progress	$30,535
Counsel fees paid to date	$31,137
Anticipated cost for further trial preparation	E$10,000
Solicitor’s fees for trial	E$48,000
Counsel fees for trial	E$160,000

C Street, Suburb D	Joint	$1,800,000
Interim distribution received by applicant	Applicant	$15,000
Interim distribution received by respondent	Respondent	$15,000
Interim settlement of property received by applicant	Applicant	$62,000
Motor vehicle 1	Joint	$50,000
TOTAL	$1,942,000

NAB Home Loan (as at 15 November 2023)	Joint	$642,380
Motor vehicle 1	Joint	$50,000
TOTAL	$692,380

Applicant’s interim property settlement	$77,000
Respondent’s interim property settlement	$15,000
Motor vehicle 1	$50,000
TOTAL	$142,000
Less loan to respondent’s parents for Motor vehicle 1	$50,000
TOTAL	$92,000